Fair Work Commission – Background and Facts

The full bench of the Fair Work Commission has taken the rare and serious step of allowing for a reconsideration of a full bench authority on fixed-term contracts. The Fair Work Commission granted the Navitas English Pty Ltd employee leave to appeal a ruling on whether employees on fixed term or “outer-limited” contracts are dismissed when their terms expire.

Fair Work Commission Decision:

The Fair Work Commission:

concluded that it was in the public interest to grant the employee’s appeal and reconsider the well-established 2006 decision of Department of Justice v Lunn

suggested this was a matter of public interest because Lunn considers old unfair dismissal provisions under the Workplace Relations Act 1996 (Cth), and thus the applicability of the reasoning in Lunn as it applies to the Fair Work Act has not been previously analysed by the Full Bench

stated that in their view “the first ground of appeal raises issues of importance and general application in relation to the question of the approach that should be adopted by the Commission in determining whether there has been a termination of employment at the initiative of the employer, particularly in relation to employees who have been employed on a series of fixed term or outer limit contract”

Employment Law – Background

The Victorian Court of Appeal reaffirmed a decision that an employer was unable to enforce a restraint clause against an employee. The accounting firm’s breach of an employment contract consequently ended its right to enforce a restraint clause against the accountant. The case highlights the importance of carefully assessing any differing views between the employee and employer in employment law.

Employment Law – Facts

In essence:

the employee-accountant signed an employment contract in 2012

the contract contained a restraint clause that operated for 12 months. Notably, the terms were found to be reasonable by judges in earlier cases

the accounting firm expanded its business over 2015-16

the accounting firm denied the accountant certain bonuses he believed he was entitled to

as a result, the accountant requested payment to which the employer refused

the accountant took a week’s leave. A few days after he returned, he informed the employer he considered the refusal to pay the bonuses as a repudiation of the employment contract

Employment Law – Background

In June this year, the Fair Work Commission (FWC) announced the reductions of public holiday penalty rates for the hospitality, retail, fast food and pharmacy sectors. The reductions were decided as part of the FWC’s four-yearly review of modern awards.

As of 1 July 2017, public holiday penalty rates were reduced while Sunday rates will reduce over three to four years. Although the unions argued for the delay in reductions, the FWC agreed with employer organisations. As a result, the first transition step is smaller than later transitions. Furthermore, the retail and pharmacy sectors will have longer transition periods due to their reductions being more significant.

Employment Law – Background

Employment claims like bullying and unfair dismissal continually on the rise in employment law. Consequently, employers are increasingly required to take pro-active steps to investigate suspected workplace incidents and disputes before they lead to such claims.

A workplace investigation is a formal investigative process into an alleged workplace incident or dispute and it may be necessary to undertake same even if the complainant objects to it (ie, because they only wish to make an informal complaint).

Employment Law – Key Principles

When it comes to workplace investigations, the basics involve:

Inform

communicate the allegations in writing with as much detail as possible

advise the employee an investigation will be conducted. In addition, provide a summary of the process and meeting times

Suspend

if the allegations are serious or there is a risk of victimisation or reprisal, the employee should be suspended with pay (although subject to consideration of industrial instrument, contractual and company policy provisions)

Employment Law – Background

Currently, there are no specific guidelines on how long employers should or must conduct redundancy consultations under a Modern Award.

Different rules of course may apply to enterprise agreements, under company policies or in some cases under the terms of an employee’s employment agreement.

We understand that employers may want to rush a business restructure in order to continue running the business, however, there are a few tips employers should consider to minimise any possible adverse effects.

Employment Law – Background

The Australian Government announced the abolition of the Temporary Work (Skilled) visa (subclass 457 visa) in April 2017. They will be replaced with the Temporary Skill Shortage (TSS) visa in March 2018. Consequently, employment law questions have arisen regarding the entitlements afforded to such workers in this transition period.

Common questions include:

Could the employee successfully claim unfair dismissal?

Is an employee on a 457 visa entitled to redundancy pay if there is no further work when the visa expires?

Employment Law – The Fair Work Act 2009 (Cth)

s386(2) provides that an employee is excluded from claiming unfair dismissal if:

the employee is employed on a contract;

for an unambiguous specified period of time; and

whose employment is terminated at the end of that specified period

Employment Law – Case Decision

A decision of the Full Bench of the (then) Australian Industrial Relations Commission held that a s457 visa can be used to specify the fixed time period of an employment contract. This is provided that the parties have a sufficiently proven understanding of the terms of the visa and the contract of employment. This understanding must therefore include the period of employment and most notably, the end date.Continue reading…

Matthews Folbigg is one of Western Sydney's leading law firms located in the heart of Parramatta. We exist to make a difference and we take pride in our work and in the role we play in helping our clients to find solutions, resolve disputes, seize opportunities, and create and protect value.